The day after the court denied Johannes Mehserle defense attorney Michael Rains' 995 motion to dismiss the murder case due to supposed judicial improprieties, Rains filed his long-expected motion for a change of venue (attached below). Mehserle and his defense team appear to be hoping for the murder trial to be moved out of Alameda County as their last best chance for him to avoid a conviction for the murder of Oscar Grant III on January 1st, 2009.

Mehserle's defense was repeatedly embarrassed during the unusually long preliminary hearing in late May and early June when BART officer after BART officer was called to testify by the defense only to be exposed as liars by video evidence and their own contradictory statements. In that regard, Mehserle's defense team clearly failed him at the preliminary hearing, and it is not expected that the actual trial will be incredibly different with the same officers testifying and the same video evidence presented (with some "expert" witnesses and smearing of Oscar Grant added in).

Now Rains has thrown down the gauntlet with the change of venue motion he filed with the court on September 11th. At this point his best shot at avoiding a conviction for Mehserle appears to be moving the trial to a less diverse county where the defense could more reliably count on a judge and/or jury acting on biases in favor of police and against people of color rather than the facts of the case which clearly call for a murder conviction for Mehserle. From reading the change of venue motion, it is obvious that Rains and his staff have been working on it for quite some time. It is extremely detailed. The motion itself is seventy-six pages in length, and staff in charge of records at the court house said it was accompanied by two boxes full of related Exhibits. Alameda County Superior Court Judge Morris Jacobson, scheduled to begin hearing the venue motion on October 2nd, has an arduous task on his hands to read the document in its entirety and to review the thousands of media reports listed in the motion, not to mention the numerous judicial case histories cited and any forthcoming opposition statements from the Alameda County District Attorney's office.

In the motion itself, Rains piles on a number of racial arguments that are insulting to the intelligence and integrity of the people of Oakland and Alameda County. He basically claims that African Americans in Oakland are so biased that they are incapable of fairly judging the case, so therefore the venue should be moved. Additionally, he argues that he would have to so thoroughly grill potential African American jurors for their bias that the defense would be accused of racism, so again the venue should be moved. Oakland has a long history of white police officers abusing and murdering black citizens, and somehow Mehserle's shooting an unarmed Oscar Grant in the back in Oakland is merely a coincidence, so the venue should be moved because the ongoing crimes of racist police create an unfair bias against Mehserle within the potential jury pool. Groups such as the Black Panthers, Uhuru House/African People's Socialist Party, and the Nation of Islam arose in Oakland to fight against such very real police brutality, so their unfair bias means the venue should be moved. Los Angeles police officers Laurence Powell, Stacey Koon, Timothy Wind, and Theodore Brisenio had their venue changed in the videotaped Rodney King beating case -- and we all know how great that turned out -- so the venue should be moved in this case even more so. African Americans make up only 13% of the population of Alameda County but because they as a demographic group are not capable of being impartial jurists, the trial should be moved. These are the racist and illogical arguments Rains makes in his change of venue motion.

Rains cites the Oscar Grant Rebellion that occurred in January as another reason for venue change, but he neglects to give proper weight to the fact that the reason for such heightened anger at the time was that Mehserle had not been arrested or even questioned by authorities immediately after the murder on January 1st and that he was later granted bail. While Mehserle continues to enjoy his personal freedom on bail, his arrest on January 13th largely diminished the size and vociferousness of later protests. Community activists have been adamant yet calm as they have pressed for justice in the courts and at BART since the initial outrage in January.

Rains claims that media coverage is one reason for supposed bias inhibiting a fair trial for Mehserle in Alameda County. He cites numerous corporate media reports and then devotes an entire section of the motion to community activists and independent media. He claims actions taken by CAPE (Citizens Against Police Executions), BAMN (By Any Means Necessary), No Justice No BART, the Town Halls for Justice for Oscar Grant, the Revolution Club, Uhuru House, and coverage on Indybay as reasons the venue should be moved. He accuses these groups of spreading disinformation about the case and unfairly amplifying political pressure to prosecute.

One such passage reads as follows:

18 Any argument that passions regarding the Grant shooting have died down was put
19 during an August 22, 2009, BART town hall meeting at which various speakers, including
16 religious and community leaders, referred to the Grant shooting as murder and called for
17 Mehserle's conviction. See http://www.indybay.org/newsitems/2009/08/25/18619422.php.
18 Days before the filing of this motion, during the weekend shutdown of the Bay Bridge
19 (and the concomitant increase in BART ridership), a local group committed to seeking
20 Mehserle's conviction and prosecution of other officers involved in the January 1st events took
21 the BART system to remind the public about the case. The group posted fliers throughout the
22 BART system picturing the BART police logo, with the words, "Police Murder. BART lies.
23 We die." (Exhibit 14) The flier also pictures an officer shooting a man who is clearly restrained
24 by the police. Members of the group spoke on BART trains throughout the system, making
25 various (and often patently false) factual claims about the evidence in the case. Videos of the
26 speeches, as well as an article describing the groups efforts to publicize the case, were posted
27 to the hybrid news/advocacy website indybay.org. See http://www.indybay.org/newsitems/2009/09/06/18621071.php. [pg 50]

Another similar passage continues:

4 Also in the wake of the Grant shooting, a series of websites began closely to cover the
5 case, which coverage amounts to a highly prejudicial marriage of advocacy and reporting.
6 So, for example, a site called indybay.org describes its purpose this way: "We strive to
7 provide an information infrastructure for people and opinions who do not have access to the
8 airwaves, tools and resources of corporate media. This includes audio, video, photography,
9 internet distribution and any other communication medium. We support local, regional and
10 global struggles against exploitation and oppression. We function as a non-commercial, non-
11 corporate, anti-capitalist collective."
12 http://www.indybay.org/newsitems/2003/12/08/16643971.php.
13 Indybay.org has provided regular coverage of the Grant shooting and its aftermath, with
14 a strong and not particularly concealed view that Grant was killed because he is black, that the
IS shooting is evidence of generalized police brutality against the black community, and that
16 Mehserle is guilty of murder. Indeed, the site always refers to the shooting as the "murder" of
17 Oscar Grant, a word not used by the Chronicle, Tribune, television stations and so forth. See
18 http://www.indybay.org/newsitems/2009/07/15/18608188.php; see also http://www.indybay.org/;
19 http://revcom.us; http://www.ruckus.org/; http://joincape.blogspot.com/;
20 http://uhurunews.com; http://nojusticenobart.blogspot.com/.
21 The activities of CAPE, BAMN, lndybay.org, and the rest of the groups named above
22 and described in Exhibit 13 amount to yet another political factor that, under Maine and Powell
23 requires a change of venue. These groups impacted and heightened the political impact of the
24 shooting and the massive media attention that followed in four key ways.
25 First, the groups acted as a catalyst for that publicity: they spread information or in
26 many cases disinformation about the case; they distributed the shooting video; they distributed
27 video of various other pro-Grant/anti-Mehserle activities including demonstrations, some of
28 which devolved into riots; they distributed interviews with pro-Grant/anti-Mehserle speakers, [pg 63]
1 and they distributed pro-Grant/anti-Mehserle propaganda including pictures, posters, bumper
2 stickers, tee shirts and so forth. [pg 64]

Presumably Rains goal here as much as anything is to scare Judge Jacobson, who will be hearing the venue motion, because why else would he include irrelevant things like Indybay's "Principles of Unity" if not to invoke scary words and phrases like "anti-capitalist" and "global struggles against exploitation and oppression." Likewise, how The Ruckus Society ended up in his list of evil venue-change community activist groups is unclear if not to raise the terrifying specter of direct action in the streets.

It's interesting to note that the corporate media coverage of the change of venue motion thus far has neglected to mention Indybay or any of these community activist groups (SF Chronicle, 9/12/09, Oakland Tribune, 9/14/09, San Jose Mercury News, 9/14/09). Rains whines yet again about the gag order imposed on him, but these corporate media outlets with massive audiences rarely report on the work of community groups fighting for justice, preferring instead to repeat without question the lies in Rains' filings, the spin of BART's PR lackeys, and the dishonest testimony of BART police. It is hoped that by purchasing and sharing the motion here on Indybay as a community service that others, unlike the corporate media, will peruse the full text of the motion and write further analyses of the tactics being employed in Mehserle's defense. [Please, credit Indybay with a link when your sourcing originates here.]

The Alameda District Attorney -- either long-time DA Tom Orloff or his newly appointed replacement Nancy O'Malley -- has yet to file a response to Johannes Mehserle's change of venue motion. The hearing is currently scheduled for October 2nd at the Alameda County Court House in Oakland.

The police everywhere, especially the Bay Area, took up a collection for the money. This was in the news as the chief of the BART police was one of the collectors, probably an illegal act considering the conflict of interest. In any event, the police are not poor. In San Francisco, the make $127,000 a year and up plus benefits. And there are hundreds of thousands of police at various levels (local, state, federal, prison guards, etc) in the Bay Area, much less the rest of the US, who would gladly give lots of money both as individuals and from their police organization treasuries. The police also have lots of friends who make lots of money as they are the armed thugs of the capitalist state whose purpose is to terrorize the workingclass to prevent serious organization to put an end to the profit motive that is the goal of the capitalist state.

yes - it's sort of true. 2005 is the last year that policepay.net freely listed the base pay of officers (before overtime) without buying a subscription to their service. There have been some raises since then.

The obvious question is, why would a not guilty verdict in another county not result in the same kind of reaction? The defense cites the Rodney King case to support its change of venue argument. But the verdict in that case resulted in massive disturbances in spite of the fact that there was a change of venue. Therefore, there is utterly no guarantee that a change of venue will reduce the likelihood of disturbances following a not guilty verdict. In fact, as we saw in the Rodney King case, a change of venue resulting in a not guilty verdict will guarantee disturbances. A desperate, feeble, and transparent argument, to be sure.

people all over the state know about the case, not just in Alameda. of course he conveniently leaves out examinations of news coverage statewide. you think the hundreds of thousands of people who watched the video online all lived in alameda?

there have been derogatory news stories about Oscar Grant's friends in places like Fresno within the last couple of months. now why would Oscar Grant's friends be newsworthy in Fresno and who was feeding TV stations down there negative stories about them?

mehserle is trying to exploit the fact that his murder of Oscar Grant was newsworthy

also, the person above made a good point about the rodney king trial -- moving it is no guarantee against street demonstrations, so that whole argument is disingenuous that jurors need to be outside of alameda because they would be afraid an innocent verdict might set off a riot here

I'd guess it was in the thousands too, possibly tens of thousands in some instances. Indybay comes up in Google News searches and had many unique articles on the case (as opposed to places that just repeat the same basic AP info) so anyone looking for news on the story had a good chance of winding up here.

surprisingly, the defense motion does a decent job of discussing the history of police brutality in alameda. unfortunately, it then uses this same history to argue that the people of alameda are so biased because of the history, they won't be able to realize that this is the one case that has no racial anything to it, just a cop doing his job.

but that is exactly why the case should stay in alameda. the members of the jury are finders of fact. it should be left up to them, the people who live in this county where police brutality is such an important issue, to decide whether or not this incident had, and continues to have, in fact, a racial component. the citizens of other counties are much less qualified, if not totally unqualified, to determine whether or not race was a factor.

the argument that the media and police brutality have made citizens biased and incapable of discharging their constitutional duties wreaks of the same disregard for the people of alameda that mehserle had for oscar grant's life, as well as his discharge of mr. grant's constitutional rights, which he obviously never got a chance to exercise. this should come as no surprise though. mehserle's attorney is a former cop who defends cops. his and mehserle's racist disdain for the people of alameda and the community groups that represent their interests, comes through loud and clear, just as loud and clear as the bullet that killed oscar grant.

evidencing more disregard for the people of alameda, the defense asserts that the people of alameda WILL riot if there is a not guilty verdict. however, arguably, there is less of a chance of a violent reaction to a not guilty verdict in alameda if the people of alameda feel that keeping the case in alameda is/was an indication that a trial in alameda is/was the fair thing to do.

THIS INSECT, BIGOT XENOPHOBIC, RACIST COMMITTED A COLD BLOODED MURDER, HIS ACTIONS SHOWED HIM SHOOTING OSCAR GRANT IN THE BACK AS HE A LAYING DOWN, THE VIDEO EXPOSES THE CHEAP LIES OF THE POLICE, WHEN, A WHITE MAGGOT RACIST POLICE MURDERERS A BLACK MAN THEY ALL CELEBRATE AFTER THE MURDER-!! IT IS A RITES OF PASSAGE 4 WHITE RACIST MAGGOT COPS, THEY LOVE TO MURDER BLACKS, ITS EVIDENT, IN EVERY CITI IN THE NATION, WHITE MAGGOTS COPS ARE KILLING UNARMED BLACKS, THIS INSECT , IS GUILTY ANY FOOL CAN SEE, THAT RACIAL HATRED WAS THE MOTIVE FOR THE MURDER OF A UNARMED BLACK MAN WHO WAS OBEYING ALL THE COPS INSTRUCTIONS, YET HE WAS SHOT IN THE BACK HANDCUFFED AN LET TO DIE, EVEN, IF THIS MAGGOT GITS OFF, GOD WILL JUDGE HIM, 4 MURDERERS, WILL NOT INHERIT THE KINGDOM OF GOD, AS LONG AS WE HAVE WHITE RACIST XENOPHOBIC COPS ON THE FORCE, IT WILL CONTINUE, IF, OSCAR GRANT WAS A WHITE, 22 HE WOULD HAVE NOT SHOT HIM, IF, THIS IS NOT MURDER, THEN THERE IS NO SUCH THING AS MURDER, THE COPS THINK THEY R ABOVE THE LAW, THEY THINK THEIR WHITE PALE DEFICIENT, MEANS SOMETHING SPECIAL, IT DOES NOT MEAN A THING, THEY HAVE ASSHOLES LIKE EVERYONE ELSE, THE LIVE IN FILTH AND LIES AN MURDER, THIS PIECE OF HUMAN FECES, N HIS RACIST ATTY, ARE A PRODUCT OF WHITE INFERIORITY, NOTHING IS SUPERIOR ABOUT A MISGUIDED RACIST, REMEMBER GOD SAID VENGEANCE IS MINE, AN MURDERERS NOR WHITE SUPREMACIST WILL ENTER THE KINGDOM OF GOD

Alameda County residents are racially polarized over a white BART police officer's fatal shooting of a black passenger, and the community would erupt into violence if the officer were acquitted of murder, his lawyers argued Friday in a request to move the trial to another county.

Only a change of venue will protect Johannes Mehserle's right to a fair trial before a jury that has not prejudged his case and would not be intimidated in its deliberations, his lawyers said in papers filed in Superior Court in Oakland.

They did not suggest an alternate county, which would be chosen by the state Judicial Council if the request is granted. District Attorney Tom Orloff's office did not respond to a request for comment but is expected to oppose moving the trial.

Mehserle, 27, is charged with murdering 22-year-old Oscar Grant at BART's Fruitvale Station in Oakland early New Year's Day. Grant was pulled from a train by another officer after a disturbance and was facedown on the platform when Mehserle shot him in the back, an event recorded by several cameras and seen by millions on TV and the Internet.

Mehserle, who resigned from the police force six days later, has said through his lawyers that he thought he was firing his Taser stun gun at Grant, a belief that would reduce the maximum charge to involuntary manslaughter. Two Superior Court judges have ruled that prosecutors offered enough evidence to let a jury decide whether Mehserle knowingly fired his handgun and was guilty of murder.

In Friday's motion, defense lawyers said prospective jurors have been exposed to saturation coverage of the incident. Community and civil rights leaders have asserted Mehserle is guilty, a judge has said the former officer knew what he was doing when he shot Grant, and demonstrations condemning the shooting and police have been held, the motion said.

Mehserle's lawyers said a poll of 397 randomly selected county residents, conducted by a defense consultant from July 6 to Aug. 1, found that 97 percent had heard of the case.

Forty-six percent of respondents said Mehserle was definitely or probably guilty, the survey said. Twenty-seven percent said he was definitely or probably not guilty, and the remaining 27 percent didn't know or wouldn't say.

But more than 78 percent of the African Americans questioned - and fewer than 39 percent of the whites - said he was definitely or probably guilty, the survey said. The figures for those inclined to find Mehserle not guilty contrasted even more starkly - just over 5 percent of black respondents, and 33 percent of the whites.

"The black community has prejudged Mehserle guilty of a crime," attorney Michael Rains said in the court filing.

The defense consultant, Edward Bronson, a political science professor and researcher on jury behavior, said in a declaration that the poll shows "an extraordinarily polarized community, not the kind of jury pool that can approach the case with fully open minds." He said he doubts that a trial judge could effectively screen jurors who had prejudged the case.

Rains said Mehserle's lawyers would have to question all black prospective jurors at length about their knowledge and opinions of the case, prompting likely accusations of racism and further protests.

Rains also cited decades of conflicts between police and African Americans in Oakland.

Jurors from such a community, the lawyer said, "would feel extraordinary pressure to explain a not-guilty vote."

And in light of the history of the community and the tensions over the shooting, Rains said, "every juror will conclude, correctly, that a not-guilty verdict in this case is guaranteed to result in property destruction and violence."

OAKLAND — Only the trials surrounding the Oklahoma City bombing and the Enron scandal generated more media coverage in the Bay Area than the killing of Oscar Grant III by former BART police Officer Johannes Mehserle, a defense attorney argued in papers seeking a change of venue.

As a result, Michael Rains argued in the 76-page document filed last week, more than 96 percent of about 400 Alameda County residents surveyed said they knew about the case and its details.

That alone, Rains wrote, should prompt Alameda County Superior Court Judge Morris Jacobson to award a change-of-venue request for the upcoming murder trial against Mehserle. But there's more: a racial divide within the county concerning Mehserle's guilt, proclamations by two judges suggesting Mehserle's explanations for the killing are unbelievable, politicians' urging of swift justice for the killing, and the threat of violence should a jury not find Mehserle guilty of murder, Rains argued.

Given the severity of the accused crime, the extensive media coverage it attracted and the racial factors involved, Rains argued it was impossible for his client to receive a fair trial in Alameda County.

Rains compared the factors surrounding Mehserle's case to those surrounding the case of Rodney King, an African-American man who was beaten by several members of the Los Angeles Police Department. The beating was captured on video and received extensive coverage in the media, and attorneys defending the accused police officers won a change-of-venue motion.

Rains hired a Chico State professor to conduct a poll of likely county jurors and found that more than 96 percent of the almost 400 surveyed knew about the Mehserle case, with almost 46 percent saying the former officer is definitely guilty or probably guilty.

Rains focused on the racial divide the poll found. According to Edward Bronson, the professor who conducted the poll, more than 78 percent of African-Americans polled have decided Mehserle is guilty of murder; 33 percent of white people surveyed believed he was guilty.

Rains argues that the divide is born from the county's history, particularly in Oakland, where an overwhelming majority of officer-involved shootings involve black residents and where a majority of homicide victims are black.

Given those factors, Rains said, it would be impossible for him to be able to find a jury free of bias and harder yet to question potential jurors without being accused of racism.

"Given the results of the poll, Mehserle will be entitled to question every black juror, in private, in substantial depth, about prejudgment. The questioning will be intense, awkward, personal and uncomfortable, yet, if the case were to remain in Alameda County, it would be absolutely necessary," Rains wrote. "The questioning will inevitably receive close press attention and would likely be the subject of editorial outrage. Community leaders and politicians will accuse the defendant of trying to keep black people off the jury."

Even if an impartial African-American could be found to serve on the jury, Rains argued, the pressure on that juror, and on others on the panel, to find Mehserle guilty would be intense.

The District Attorney's Office has yet to respond to Rains' request but is expected to oppose moving the case to another location.

Should Jacobson grant Rains' request, an independent state panel will decide where the case should be located. That decision is based on numerous factors, including distance, resources and courtroom availability.